Salary reduction, bereavement-leave denial contributed to acrimony
An Ontario arbitrator has dismissed a City of Toronto worker’s claims that wage restructuring and relocation were part of a campaign of racial discrimination and harassment against him.
Phillip Johnson was born in Trinidad and came to Canada in 1967. He became employed as a part-time recreation worker for the City of Toronto in 2001.
In February 2011, Johnson picked up a bottle of what he thought was glass cleaner, but the bottle was broken and it contained bleach. The bleach splashed onto his clothes and just missed his eyes.
Johnson filed an incident report — saying three custodians about whom he had complained about before did it — but the matter wasn’t pursued.
A short time later, the city moved the custodians to different locations and wage harmonization was implemented.
Johnson’s hours and rate of pay were reduced — his pay went from $17.18 per hour to $11.44 per hour — as it was determined many employees, including Johnson, were being overpaid and not paid according to their wage code.
Johnson felt the reductions were retaliation for his discrimination and harassment allegations.
In addition, he had applied for other positions and was denied, which Johnson also felt was retaliation.
In September 2012, Johnson requested bereavement leave to attend his aunt’s funeral in Chicago, but the request was denied because the collective agreement didn’t cover paid bereavement leave for aunts.
His supervisor also called him a disgruntled employee when he failed to make sufficient efforts to take first aid training.
Worker reprimanded
A month later, a supervisor saw Johnson in uniform talking to a youth at the centre’s front desk, telling the youth to do the right thing and stay in school. The supervisor told him that staff don’t typically counsel youth while on duty if they aren’t a social worker or counsellor.
Soon after, the supervisor emailed Johnson to remind him he wasn’t supposed to offer “life counselling or advice while wearing a city uniform” as it could give the wrong impression to the public.
Soon after, Johnson learned that one of the custodians who he had complained about was going to be transferred back to the recreation centre.
Johnson went on an unpaid leave of absence in November 2012 and didn’t return.
Johnson’s union, the Canadian Union of Public Employees (CUPE), filed a complaint claiming the city failed to provide a workplace free of harassment and discrimination and intimidation.
No evidence of harassment
Arbitrator David Starkman found there was no evidence the broken bleach bottle incident involved the custodians or that it was the result of an attempt to harass or intimidate Johnson.
There was also no evidence the reductions in pay and hours were related to Johnson’s complaints, as it was a city initiative to harmonize wages that affected many employees, not just Johnson.
The reductions were made for business reasons and not intended to harass or discriminate against Johnson, said Starkman.
Starkman also found Johnson’s reprimand for talking to the youth stemmed from policy and the supervisor was acting “within the prerogatives of a manager.”
The denial of paid bereavement leave for Johnson’s aunt’s funeral was also in line with the collective agreement, which applied equally to all City of Toronto employees.
Johnson was still permitted to take unpaid leave and if he felt wronged he could have grieved at the time, said Starkman.
The other instances also lacked evidence of discrimination and harassment, as a comment calling Johnson a disgruntled employee wasn’t uncalled for in the context of the situation and Johnson wasn’t qualified to be considered a suitable candidate for some of the jobs he applied.
Starkman determined Johnson was not a victim of harassment or discrimination and dismissed CUPE’s grievance.
“I appreciate from the evidence of (Johnson) that he believes that he has been harassed and discriminated against in the workplace by management and co-workers, and that the employer has not taken steps to maintain a harassment- and discrimination-free workplace,” said Starkman.
“From my review, however, and on an objective basis, the evidence is insufficient to establish the allegations set forth in the grievance.”
For more information see:
• Toronto (City) and CUPE, Local 79 (Johnson), Re, 2016 CarswellOnt 20159 (Ont. Arb.).
